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Attachment—Additional Questions for the Record Subcommittee on Consumer Protection and Commerce Hearing on “Promises And Attachment—Additional Questions for the Record Subcommittee on Consumer Protection and Commerce Hearing on “Promises and Perils: The Potential of Automobile Technologies.” May 18, 2021 Mr. Jason Levine, Executive Director, Center for Auto Safety The Honorable Janice D. Schakowsky (D-IL) 1. During the hearing there was a lot of discussion about the potential for automated vehicle technologies to address car crash deaths and injuries, yet most of these technologies remain in the development stage. What steps could Congress take now to both accelerate the safe deployment of these lifesaving technologies and improve vehicle safety in the near future? This Subcommittee, as well as Congress at large, have a unique opportunity to level the playing field for motor vehicle safety today and in the future. Sooner, rather than later, Congress will take on the vital task of writing our nation’s first autonomous vehicle law. When it does, for the first time, Congress can help cultivate technological innovation in a way that provides safety for everyone on the road regardless of whether they are a driver, passenger, or pedestrian and no matter their income. To begin with, it is time for the National Highway Traffic Safety Administration (NHTSA) to write performance standards for existing vehicle safety technology and it is long past time for those technologies to become mandatory equipment on new vehicles. Advanced driver assistance systems (ADAS) - from automatic emergency braking (AEB) to lane keeping assist features, to driver monitoring systems and adaptive driving beam technology - have tremendous potential to save lives. However, until now NHTSA has done little to introduce minimum performance standards to ensure that each of these features work effectively to prevent crashes. Without minimum standards to ensure proper function of these features, and little appetite to recall faulty performers producing clearly unsafe outcomes, as we have seen in our work to recall faulty AEB systems, NHTSA continues to display minimal interest in ensuring these features work, whether through its enforcement or rulemaking authorities, which only accelerates the need for minimum performance standards. Far too often in recent years, NHTSA has chosen to rely on its consumer information program, the New Car Assessment Program (NCAP), to incentivize manufacturers to keep up with the pack in vehicle safety. Unfortunately, if the pack is not held to a minimum standard of function, keeping up with it provides little benefit to consumers, and zero assurance that any particular ADAS system will function as intended or advertised. Congress can do more by insisting that NHTSA update the NCAP program for the first time over a decade to ensure consumers have a way to assess ADAS performance. Additionally, requiring the agency to set minimum Mr. Jason Levine of the Center for Auto Safety – Responses to Questions for the Record Page 2 performance standards for ADAS technologies would provide a baseline from which NCAP can assess ADAS performance. One prominent form of ADAS, driver monitoring systems, have great potential to reduce drunk, drowsy, or distracted driving, provided that the technology works properly, as could be incentivized by NCAP ratings. Mandating that these technologies be deployed fleetwide, and not simply deployed in luxury automobiles, will ensure maximum safety gains in the future. By some estimates, combining features such as driver monitoring systems, automatic emergency braking and lane keeping assistance systems to combat impaired driving (drunk, drugged, drowsy, and distracted) could help to dramatically mitigate 10,000, or more, crash deaths every year. In addition to the potential to saving tens of thousands of lives, a side benefit of wide deployment of ADAS will be public comfort with the type of technology that will eventually become the foundation of driverless vehicles. Moreover, the data gathered from such vehicles, in combination with data collected from all automated test vehicles, can be used to craft reasonable regulations that set minimum thresholds for safety to better protect consumers and ensure a robust marketplace. While any autonomous vehicle (AV) law should certainly require performance standards, expansive data collection, and a gated certification regime, it must also include cybersecurity standards, vision tests, updated occupant protection standards, and pedestrian and other vulnerable road user protection standards, while maintaining current state, local, and common law rights and authorities. It is vital that an AV law does not preempt protections provided by state and local rules of the road regarding the operation of vehicles on their streets. There is no doubt that access to courts, for innocent victims killed by an experiment for which they did not volunteer, will remain the final consumer protection backstop in a potentially lengthy unregulated environment. Finally, as it remains likely that AV companies will treat contracts involving automated technology like software or smartphone agreements, binding arbitration must be forbidden in direct-to-consumer contracts. A generation of legal precedent and consumer understandings regarding the legal relationship between a vehicle manufacturer and the end user may not have been perfect, but it has generally prevented vehicle manufacturers from attempting to bind end users into giving up their rights to seek civil justice. To do away with such a protection based on legalese buried in small print will neither engender trust in the AV industry nor will it encourage the type of transparency that is needed to keep large corporations incentivized to do the right thing. Mr. Jason Levine of the Center for Auto Safety – Responses to Questions for the Record Page 3 2. The United States pioneered the concept of sharing vehicle crash data with consumers to allow the market to drive safety decisions with the New Car Assessment Program in 1980. As I understand it, that program has not been updated in over a decade. How important is it to make sure NCAP remains up to date and what should the next version of NCAP contain to allow consumers to determine which vehicles are the best for them and their families? The New Car Assessment Program (“NCAP” or “5 Star Crash Rating”) is arguably the greatest market-based, nonregulatory safety program in automotive history. Until NCAP, the concept of the public having access to crash information about vehicles by make and model did not exist. Today, consumers expect to have detailed information about the performance of their new vehicle when it comes to safety. NCAP proved that safety does sell. Unfortunately, because the program has not been updated in over a decade, what manufacturers are currently advertising when they claim a Five Star rating is an impression of safety, instead of the real thing. Today, almost every single new vehicle rated by NCAP receives a top safety rating. This is not because all of the vehicles are equally safe, it is because they are all being scored on ratings that have not been updated since 2010. It is self-evident that if 98% of cars achieve superior ratings, it is impossible to distinguish between them in any significant way. Updating NCAP is essential to ensure consumers have access to relevant and useful safety information, allowing them to make informed decisions while also pushing auto manufactures to pursue innovation in safety technology. Currently, virtually every car in the NCAP system receives 4 or 5 stars, rendering NCAP ineffective for consumers who hope to make an informed decision about the safety of a vehicle. There are many areas where NCAP can be improved, including by following some of the recommendations issued by the National Transportation Safety Board (NTSB) in 2018. The NTSB issued eight safety recommendations to NHTSA addressing the need to include performance-based standards for vehicle headlight systems, development of performance test criteria for vehicle designs that reduce pedestrian injuries, and incorporation of pedestrian safety systems into NCAP, including pedestrian collision avoidance systems and other more passive safety systems. Specifically, pedestrian safety is a pressing issue that NHTSA must address, and NCAP must play a key role in NHTSA’s consumer outreach. In 2020, despite a 13% reduction in vehicle miles travelled, pedestrian deaths on public roads hit a critical and historic figure of 6,721, which averages to one crash-related pedestrian death every 80 minutes. Additionally, an estimated 173,000 pedestrians were treated in emergency departments for non-fatal crash-related injuries in 2020. These tragedies could be dramatically reduced by incentivizing automakers to include more protective pedestrian safety features in new cars, and NCAP can be an effective means to assist in accomplishing this important task. Mr. Jason Levine of the Center for Auto Safety – Responses to Questions for the Record Page 4 Currently, the US NCAP has no rankings or information available regarding emerging technology to protect vulnerable road users, whether that be pedestrian crash avoidance features or pedestrian protective designs built into hoods and bumpers on some new vehicles. However, Pedestrian Safety is factored into the rating given by The European New Car Assessment Programme (“Euro NCAP”). Euro NCAP has recognized this need and includes in its vehicle ratings both ADAS technologies and automobile design features that protect pedestrians and minimize injury and death in an
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